In an excruciatingly long forty-eight page decision the second circuit ruled summary judgment was inappropriate as to the issue of ownership of the Ghost Rider copyright. The real question addressed by the court wasn’t who really owned the copyright in Ghost Rider but rather if the original author transferred his renewal rights in the copyright.
The district court granted summary judgment in favor of Marvel because the original author, Gary Friedrich, assigned all his rights to Ghost Rider by signing a work-for-hire agreement six years after the initial publication of the original Ghost Rider Comic. Friedrich contended that he did not assign his renewal rights in the Ghost Rider copyright and was therefore entitled to the ownership of the copyright.
According to the facts of the case Friedrich was big fan of comic books and motorcycle gang movies, and first imagined of the idea of a superhero that wore black leather and rode a motorcycle. In 1968 he conceived of the hero we know today at Ghost Rider, flaming skull and all; which, apparently, he conceived after seeing his “bony-faced and red-headed” friend riding a motorcycle. After finishing the character’s concept Friedrich presented a synopsis of his story to Marvel comics whose chief editor, Stan Lee, agreed to publish to Ghost Rider story and Friedrich agreed to assign his rights in the character to Marvel. The renewal rights were never discussed.
The comic was finally published in 1972, if you’re a bit of a comic geek you know this was in Marvel Spotlight, Vol. 1, No. 5. The comic identified Marvel as the copyright holder and had a credit box which said “conceived & written by Gary Friedrich”. Ghost Rider later became a commercial success for Marvel and had a series dedicated to the character in 1973.
In 1978, after congress introduced the Copyright Act of 1976, Marvel required all of its freelance authors to sign work-for-hire agreements. Friedrich signed the agreement on July 1978, which was a confusing mess of legal garbage, and returned it to Marvel.
The question that was raised by the court of appeals, and therefore the reason for vacating summary judgment, revolved around the interpretation of the work for hire agreement. After the court reviewed the work-for-hire agreement it determined it was not specific as to whether the author assigned his renewal rights in his copyright. Under the copyright laws an author is allowed to assign his renewal rights but there “is a strong presumption again the conveyance of renewal rights.” Corcovado Music Corp. v. Hollis Music, Inc., 981 F.2d 679, 684 (2nd Cir. 1993). If there is an express term that says the author agrees to convey his renewal rights, then the court will likely enforce it. In this case there was no express language in the agreement that indicates this intent, furthermore, any language such as “forever” that implied the intent to convey the renewal term should be interpreted by a jury.
After carefully reviewing the contract signed by Friedrich, the Court of Appeals rules that it was in err for the district court to grant summary judgment in favor of Marvel for three reasons.
First, the contract was ambiguous and often illegible. The language was not specific as to whether it covered only the work created for Marvel after contract was signed or the work Friedrich created six years prior. Additionally, there is not specific mention in the contract of the “Ghost Rider” work. Marvel relied heavily on a provision of the contract that says “grant[ing] to MARVEL forever, all rights of any kind and nature in and to the Work”. Regardless, the court stated it was not clear whether the language applied to the work created six years earlier and was not enough to overcome the strong presumption against the conveyance or renewal rights. Extrinsic evidence indicated that when the contract was signed Friedrich was unrepresented by counsel, was told the agreement only covered future work, and that he did not know about the concept a renewal rights until 2005. Finally, there was also no discussion of renewal rights when the parties signed the contract in 1978.
If you would like to read the full opinion click here. Suffice to say, there were enough questions regarding the contract and the renewal rights that the question must be submitted to the fact finder. A reminder that media and publishing companies should not haphazardly sign form work for hire agreements with writers and writers should be represented by counsel with dealing with publishers.
This article is for commentary only and nothing herein constitutes legal advice. If you need the legal help please contact an attorney.